Defense attorneys at this point, should have at least some familiarity with the Reptile approach that the plaintiffs’ bar is using as a route to persuasion. The idea of framing cases based on personal fear and threats to community safety has made significant inroads in medical negligence, products liability, personal injury, and other cases. The classic image of the Reptile in action probably involves a plaintiff’s attorney standing before a jury and playing to their deepest fears about careless doctors, faulty products, and unsafe circumstances. But the Reptile isn’t just a technique for trial, and it isn’t just a style of questioning in deposition either. The Reptile approach also finds a habitat in the mediation room.
In mediation, the parties are simply trying to see if a mutually-agreeable resolution can help avoid the delay, expense, and uncertainty of trial. So in that context, you might think we would want to take full advantage of our sophisticated neo-mammalian brains and have little use for the primitive “flight or fight” Reptile brain. With such a high proportion of cases being resolved by pretrial settlement, however, Reptile advocates are not ignoring this arena. For that reason, when assessing one’s case prior to mediation, and preparing for mediation itself, it helps to understand the way the Reptile is intended to work during mediation.
The General Tactic: Framing the Case as You Intend to Present It
Naturally, the “the trial that would otherwise be” or that “might yet be,” plays a starring role in mediation, and both sides will assess their settlement postures by comparing that outcome to what they could expect in trial. So the plaintiff’s Reptilian potential, and the defendant’s answer to that potential, are both likely to play an important role in the stories that each side is telling to the mediator and to each other.
So while it may not be as overt as it would be in trial, plaintiffs can be expected to present a mediation story about a safety rule being violated, about the community dangers that result, and security to be found in a collective response. And, in parallel fashion, the defense can be expected to emphasize the uniqueness of the case, the personal responsibility in voluntarily assuming risk, and the fact that the case should be ultimately about law, not fear.
The Particular Tactic: Inducing ‘Reptilian’ Fear in the Settlement Decision Maker
One plaintiff’s tactic I recently learned of is the attempt to require attendance at mediation by the insurance claims adjuster who has full authority to settle the case for the amount being demanded by the plaintiff. As detailed by Mark Behrens and Cary Silverman of Shook, Hardy & Bacon, in an article download from 2016 IADC Committee Newsletter, a proposed rule change for U.S. District Court in the Eastern District of Washington would require defendants to follow the advice given by Reptile authors David Ball and Don Keenan in their 2009 manual: “The person attending the mediation will have – without the need to ask anyone up the ladder – the power to settle for the amount” last demanded by Plaintiff’s counsel. The idea is that this preapproval will create a high anchor while also trying to push the adjuster in the spot where they fear for their job in the event of a higher adverse verdict at trial.
But the presence of that fear may not be all that unique for an adjuster. As mediator Jeffrey Krivis notes in a 2012 article in Plaintiff Magazine, “Trying to push the adjuster past the authority level will necessarily kick in the survival instinct such that the negotiation or mediation could deteriorate since the adjuster doesn’t want to lose his/her job by offering too much money.” What both sides are after, according to Krivis, is closure: an ending that feels fair and reduces the uncertainties that both might face in litigation. If both sides, along with the mediator, focus on this notion of closure — how to achieve and manage it — then the entire mediation process is less about fear-based posturing and more about fear reduction for both sides.